The perfect is the enemy of the good

The International Criminal Tribunal for the former Yugoslavia has acquitted on appeal Momcilo Perisic, former Chief of Staff of the Army of Yugoslavia (VJ), who had previously been sentenced to 27 years in prison for war-crimes in Croatia and Bosnia-Hercegovina. He was one of only six officials from Serbia-Montenegro ever indicted by the ICTY for war-crimes in Bosnia. He was the only member of the high command of the Yugoslav People’s Army (JNA) or VJ ever indicted for war-crimes in Croatia or Bosnia, and the only former JNA officer from Serbia or Montenegro of any rank ever indicted over Bosnia. His acquittal means that, to date, no official or army officer of Serbia-Montenegro and no member of the JNA or VJ high command has been convicted by the ICTY for war-crimes in Bosnia. By any standards, this represents a monumental failure on the part of the Tribunal. Precisely what kind of failure, and whether it is a failure of the Prosecution or the judges or both, is open to debate.

Perisic’s acquittal follows the ICTY’s recent acquittals of Croatia’s Ante Gotovina and Mladen Markac, and of Kosovo’s Ramush Haradinaj. Those previous acquittals had provoked a veritable paroxysm of fury from Serbia’s politicians such as President Tomislav Nikolic, Prime Minister Ivica Dacic and UN General Assembly president Vuk Jeremic, who condemned them as proving that the ICTY was an anti-Serb and/or a political court. Commentators in the West widely agreed; an ill-informed rant by David Harland, former head of UN Civil Affairs in Bosnia-Hercegovina in 1993-1995, upholding all the old Serb-nationalist stereotypes of the ICTY’s and West’s supposed anti-Serb bias, was published in the New York Times and received wide publicity even from reputable sources. People who had apparently been fairly satisfied with the ICTY’s not entirely glorious performance over the past two decades now emerged from the woodwork to denounce it in bitter terms.

The acquittal of such a high-ranking Serbian official, following the acquittal of two high-ranking Croats and one high-ranking Kosovo Albanian, provides further proof – if any were needed – that the ICTY is not ‘anti-Serb’. Perisic is, in fact, neither the first nor the most high-ranking senior Serbian official to be acquitted by the Tribunal; former Serbian President Milan Milutinovic was acquitted back in 2009 of war crimes against Kosovo Albanians.

Consequently, the Serbian government has now made a rapid U-turn in its view of the Tribunal. Prime Minister Dacic (also leader of the Socialist Party of Serbia founded by Slobodan Milosevic) had responded to the Gotovina and Markac acquittals by stating ‘This confirms the claims of those who say that the Hague Tribunal is not a court and that it completes political tasks that were set in advance’. Yet his reaction to the Perisic acquittal is that it ‘negates accusations about the alleged aggression of the Army of Yugoslavia against Bosnia and Croatia’. The latter conclusion is echoed by the Sense News Agency, which provides detailed overage of the activities of the ICTY and which claims that ‘Momcilo Perisic was the only senior official from Serbia and FR Yugoslavia convicted by the Tribunal and sentenced for crimes in Bosnia and Herzegovina. Slobodan Milosevic was charged with the same crimes, and the judgment can be considered as Milosevic’s posthumous acquittal for Sarajevo and Srebrenica.’

In these circumstances, there is naturally a temptation for those on the other side of the front-lines from the Serb nationalists – those who wanted to see the Serbian perpetrators of war-crimes in Croatia and Bosnia punished, and the victims receive justice – to cry foul, and to carry out a Dacic-style U-turn of their own. A temptation, that is, to say that the supporters of Milosevic, Seselj and Tudjman were right after all, and the ICTY is really just a kangaroo court whose verdicts are political. But this temptation should be resisted, both for pragmatic reasons and, more importantly, for reasons of principle.

Pragmatically, conceding that the ICTY is a kangaroo court whose verdicts are political means handing an enormous victory to those extremists – Serb and Croat, right-wing and left-wing – who supported the elements that carried out the war-crimes and that have always resisted the efforts of the ICTY to punish them. It is not for nothing that – both in the former Yugoslavia and in the West – ethnic cleansers, fascists and extremists have consistently opposed the Tribunal, whereas liberals, democrats and progressives have supported it. To reject the legitimacy of the ICTY and its verdicts means negating not only those verdicts we don’t like, but all the good that has been achieved by precisely this Tribunal, despite its undeniable numerous failures. The ICTY was the first international court to establish that the Srebrenica massacre was an act of genocide, paving the way for the confirmation of this fact by the International Court of Justice.

Immediately following the acquittals of Gotovina, Markac and Haradinaj, the ICTY in December of last year convicted Zdravko Tolimir, Assistant Commander of Intelligence and Security of the Army of Republika Srpska (VRS), for genocide, and in the process established that the group targeted for genocide by the VRS was the Muslim population of East Bosnia as a whole – not just of Srebrenica – and that the genocidal act extended to Zepa as well as Srebrenica. It is a tremendous breakthrough for the legal recognition of the Bosnian genocide beyond Srebrenica. If the Perisic acquittal is to be dismissed as a political verdict, it undermines the Tolimir verdict as well. You cannot have it both ways, and cheer the verdicts with which you agree while denouncing those you don’t like. Either the ICTY is a legitimate court or it is not.

Which brings us to the matter of principle: a genuine, legitimate court must have the right and ability to acquit, as well as to convict. If the ICTY were really a kangaroo court, all those accused would be convicted. Instead of which, we have proof of genuine pluralism, with panels of judges dividing 2-1 and 3-2 over major cases, and the Appeals Chamber reversing the decision of the Trial Chambers. Whatever his political views or personal inclinations, Judge Theodor Meron, presiding judge at both the Appeals Chamber that acquitted Gotovina and Markac and the one that acquitted Perisic, and currently under attack from critics for the acquittals, was in each case only one judge in a panel of five who came from different countries. He was the only judge who acquitted both Gotovina and Markac on the one hand and Perisic on the other, and was not even a member of the Trial Chamber that acquitted Haradinaj. The only other judge who was a member of the Appeals Chamber both for Gotovina-Markac and for Perisic was Carmel Agius, and he strongly opposed the acquittal of Gotovina and Markac but supported that of Perisic. Judge Bakone Justice Moloto was presiding judge both in the Trial Chamber that convicted Perisic and in the Trial Chamber that acquitted Haradinaj. In the first case, he dissented from the majority opinion but was outvoted – something that took place in September 2011, a mere year and a half ago. Hence, I must respectfully disagree with my colleague Eric Gordy, who argues that the acquittals all form part of a consistent policy on the part of the judges in this period.

The conspiracy theorists (among whom I do not include Eric) would either have us believe that the initial indictments of Gotovina/Perisic and their initial convictions were simply elaborate deceptions paving the way for the final, pre-determined acquittals. Or they would have us believe that whenever the ICTY convicts it is acting legitimately and whenever it acquits it is acting politically. But a court that only convicts and never acquits is not a genuine court. Even at the International Military Tribunal at Nuremberg that tried the leaders of Nazi Germany after World War II, three of the twenty-four defendants – i.e. one in eight of the high-ranking officials of Nazi Germany who were prosecuted – were acquitted. The whole point of a fair trial is that guilt is not assumed and defendants are assumed to be innocent until proven guilty.

The present author has, in the past, condemned the ICTY for retreating in the face of Serbian obstruction of its activities, citing such instances as the failure to indict most of the leading members of the Joint Criminal Enterprise from Serbia and Montenegro; the acquittal of Radovan Karadzic on one count of genocide; and the censoring of the minutes of the Supreme Defence Council. However, the acquittal of Perisic is not part of this pattern; he had already been arrested and convicted, so any Serbian resistance in his case had already been overcome.

It is one thing to accuse the Tribunal of shabby or unprincipled compromises and retreats, but quite another to accuse it of actually falsifying the guilt or innocence of suspects. Karadzic’s acquittal aside, the present author has never accused the Tribunal either of acquitting anyone guilty or of convicting anyone innocent. I did not, for example, condemn its initial conviction of Gotovina and Markac. Nor did I condemn its acquittal of Milutinovic or of Miroslav Radic (one of the three JNA officers indicted over the Vukovar hospital massacre). I am somewhat amazed that so many people, of all national backgrounds and political persuasions, have so little respect for the principle that it is ultimately for the court to decide who is innocent and who is guilty. Of course, it is entirely possible for a court to get things wrong and for a miscarriage of justice to occur. But a miscarriage of justice needs careful explaining as to how it was arrived at, not mere petulant denunciation.

In the case of Perisic, the essence of the disagreement between the Trial Chamber majority and the Appeals Chamber majority was that the first considered that ‘under the VRS’s strategy there was no clear distinction between military warfare against BiH forces and crimes against civilians/and or persons not taking active part in hostilities’, while the latter argued that ‘the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war’, albeit one that also engaged in criminal activities. Thus, the Trial Chamber considered that there was no clear distinction between the VRS’s lawful and its criminal actions, while the Appeals Chamber considered that there was.

Furthermore, the Trial Chamber ruled that though it could not be proven that the military assistance provided by Perisic to the VRS was specifically intended by him to support its criminal as opposed to its legal activities, nevertheless, since he clearly knew that his assistance would be used for criminal activities at Sarajevo and Srebrenica, as well as for legal military purposes, he was therefore guilty of aiding and abetting its criminal activities. The Appeals Chamber, by contrast, ruled that since it could not be proven that that he intended his military assistance to be used for criminal as opposed to legal military purposes, he could not be held to have criminal intent and therefore be held culpable for aiding and abetting the VRS’s crimes.

In other words, there is little disagreement between the two Chambers regarding facts of the case (so far as the Bosnian part of it is concerned) but principally over what conclusion should be drawn from them. The disagreement is not equivalent to that between the Trial Chamber and Appeals Chamber in the case of Gotovina and Markac, when the two chambers fundamentally disagreed over what the facts were; i.e. over whether the Croatian Army had deliberately shelled civilian targets with the intent of bringing about the removal of the Serb population from the so-called Krajina region. In the case of Perisic, the Appeals Chamber was not throwing out an unsafe conviction based upon a highly spurious interpretation of events, as was the case with the acquittal of Gotovina and Markac. Rather, it was expressing a different judgement on the nature of culpability to that of the Trial Chamber.

In this disagreement, my own sympathies are entirely with the Trial Chamber, and I applaud the dissent from the Appeals Chamber majority opinion of Judge Liu Daqun, who argued that by acquitting Perisic, the Appeals Chamber was setting the bar too high for convictions on grounds of aiding and abetting. However, personal sympathies aside and on the understanding that judges are supposed to be wholly impartial, the conclusions of either Chamber could legitimately be drawn from the facts. Unfortunately, the more conservative type of conclusion of the Appeals Chamber is the one I would have predicted judges at the ICTY usually to reach. My colleague Florian Bieber has made the reasonable point that ‘arguing that not all [the VRS’s] activities were criminal is about as convincing as stating that the Mafia is not only involved in criminal activities and thus supporting it does not mean that one is “aiding and abetting” criminal activities.’ Following that analogy, Perisic could be compared to a powerful businessman who donates money, vehicles and properties to a charity known to be acting as a front for Mafia activities. Even if he clearly knew the charity’s true purpose, convicting him might not be so easy for the courts. Al Capone was, after all, only convicted for tax evasion.

This brings us to the ultimate reason for Perisic’s acquittal: the Prosecution’s case against him, resting as it did on a model of culpability that was judicially controversial, was not a strong one. The Prosecution was unable to prove his intent to commit crime, or that the assistance he provided to the VRS was intended to further its crimes. It was unable to link him directly to any specific crime. It could merely prove that he aided and abetted an army – the VRS – that he knew was engaging in criminal activities, but which was also engaging in lawful military activities.

The second reason why the Prosecution’s case was weak concerns the question of command responsibility. The Trial Chamber ruled that Perisic had no command responsibility over VRS forces, but that he did have such authority over the ‘Serb Army of Krajina’ (SVK – so-called ‘Croatian Serbs’), and in addition to aiding and abetting the VRS forces engaged in criminal acts as Sarajevo and Srebrenica, it convicted him for failing to punish the SVK perpetrators who shelled Zagreb in May 1995, killing and injuring civilians. But the Trial Chamber recognised that Perisic had ordered the SVK not to shell Zagreb and that it had disregarded his orders, choosing instead to obey the orders of Milan Martic, ‘President of the Republic of Serb Krajina’, to shell the city. This implicit recognition of Perisic’s lack of effective command responsibility over the SVK forces formed the basis for the Appeal Chamber’s overturning of his conviction for the war-crime at Zagreb – and even Judge Liu, who dissented from the majority over Perisic’s acquittal for Sarajevo and Srebrenica, agreed with the majority on this count. In other words, the Prosecution chose to indict someone who had no command responsibility over the Bosnian Serb forces guilty of crimes in Bosnia (Sarajevo and Srebrenica) and only ambiguous command responsibility over the Croatian Serb forces guilty of crimes in Croatia (Zagreb).

Having myself worked as a war-crimes investigator at the ICTY, I am not at all surprised that four out of the five judges (and one out of three in the original Trial Chamber) were not convinced by the Prosecution’s case. Generally speaking, cases involving high-ranking perpetrators far removed from the crime base are complicated to build unless their command responsibility is clear and unambiguous. Thus, it was relatively straightforward to build a case against Milosevic for war-crimes in Kosovo, where his command responsibility (as President of the Federal Republic of Yugoslavia) was clear. But more complicated to do so over Bosnia, where (as President of Serbia) it was not. In such cases where evidence of de jure responsibility is lacking, prosecutors need strong evidence of de facto responsibility.

But Perisic was not a Milosevic, Karadzic or Mladic. He was not a member of the top Serbian-Montenegrin-JNA leadership that planned and instigated the wars against Croatia and Bosnia, and his name is not listed among the principal members of the Joint Criminal Enterprise as laid down in the Milosevic indictments. He was commander of the Artillery School Centre in Zadar in Croatia, and in January 1992 became commander of the JNA’s 13th Corps, based in Bileca in Hercegovina. In these roles of less than primary importance, he participated directly in the wars in Croatia and Bosnia. Had the Prosecution chosen to indict him for war-crimes committed by his forces in this period, he would in all likelihood have been convicted. However, it did not.

The three principal phases of mass killing by Serb forces in the Bosnian war were the initial Serbian blitzkrieg of spring, summer and autumn 1992, resulting in the Serbian conquest of about 70% of Bosnian territory; the siege of Sarajevo, lasting from spring 1992 until autumn 1995; and the Srebrenica massacre of July 1995. The first of these claimed by far the largest number of victims; according to the figures provided by Mirsad Tokaca’s Research and Documentation Centre, more Bosniaks were killed in the Podrinje region (East Bosnia) in 1992 than in 1995, the year of the Srebrenica massacre. Moreover, the regular Serb army forces that undertook the initial blitzkrieg, until 19 May 1992, were formally part of the JNA and not only de facto but also de jure under the command and control of Serbia-Montenegro, in the form of the rump Yugoslav Federal presidency made up of members from Serbia and Montenegro, and of the high command of the JNA/VJ.

Had the ICTY Prosecution indicted the top JNA commanders and Yugoslav Presidency members (from Serbia and Montenegro) who commanded these Serb forces during the blitzkrieg, and prior to that the earlier assault on Croatia, they would no doubt have been successful and Serbia’s direct responsibility for the war in Bosnia would have been judicially established. A successful outcome would have been particularly likely, given that a couple of these war-criminals have been obliging enough to publish their memoirs or diaries in which they admit their planning of the war.

On 19 May 1992, however, the newly proclaimed Federal Republic of Yugoslavia (FRY), comprising Serbia and Montenegro, formally withdrew its forces from Bosnia, and a Bosnia Serb army – the VRS – formally came into being. Serbia’s political and military leadership thereby ceased to have de jure command and control over the Bosnian Serb forces. Furthermore, the Trial Chamber that convicted Perisic ruled that, in fact, the Serbian leadership in this period did not have even de facto control over the Bosnian Serb forces either – as did the International Court of Justice, in its own 2007 verdict in the case of Bosnia vs Serbia. The arrangement whereby the Bosnian Serb war-effort would be formally independent of Belgrade was put in place with the deliberate intention by Serbia’s leadership of avoiding accusations of aggression and involvement in the Bosnian war. Of course, Serbia continued to provide extensive financial and military support to the Bosnian Serb forces. But it should have been clear to any war-crimes investigator worth their salt that convicting FRY military commanders of war-crimes in Bosnia after 19 May 1992 would be a much more difficult task.

Momcilo Perisic became Chief of Staff of FRY’s army, the VJ, only in August 1993, and his indictment by the ICTY only covers his activities from this period. The policy of supporting the VRS had been put in place under his predecessors, and though he was a strong supporter of the policy and apparently institutionalised it, he was scarcely its architect. Even as regards the siege of Sarajevo – one of the two crimes in Bosnia for which Perisic was indicted – the Serb killings of civilians peaked in the spring and summer of 1992 and dropped considerably thereafter, dropping particularly from around the time that Perisic took over (according to Tokaca’s figures). Chief of Staff Perisic was therefore a singularly bad choice of individual to indict for war-crimes in the period from August 1993: though he was not a simple figurehead equivalent to President Milutinovic, and enjoyed real authority in a post of considerable importance, he was ultimately just one of Milosevic’s interchangeable officers; little more than a cog, albeit a large one, in the military machine, and moreover in a part of the machine whose culpability for actual war-crimes was secondary at the time, since the Milosevic regime had devolved most of the killing to a different part – the VRS.

Had the ICTY prosecutors ever really understood the chronology and organisation of the Serb aggression against Bosnia, they could have avoided such a poor decision. But it is clear from reading Carla del Ponte’s memoirs that she, at least, never had more than a muddled understanding of it. She nebulously attributes primary and equal responsibility to the war as a whole to two individuals, Slobodan Milosevic and Franjo Tudjman, but is unable to explain how that responsibility translated into the form that the war took. Although she deserves credit for eschewing a narrowly legalistic and lawyerly approach to war-crimes prosecutions and for attempting to view the big picture of the war – and therefore for insisting on genocide indictments in the face of conservative resistance from some of her colleagues – the big picture that she viewed was an erroneous one. Her starting point was not a global systemic analysis of the aggression, but apparently the big crimes with which she herself, as a non-expert on the war, was familiar – the siege of Sarajevo and the Srebrenica massacre.

In her own memoirs, del Ponte’s former spokeswoman Florence Hartmann recalls that del Ponte insisted, among other things, that Milosevic himself be indicted for Srebrenica and Sarajevo, in the face of resistance from Geoffrey Nice and others, who feared that they would not be able to convince the judges of the validity of the charge. Del Ponte was thus motivated by the commendable desire to ensure that Serbia’s leadership would not escape responsibility for the killing in Bosnia, but her analytical confusion ensured her plan would not go well. In light of Perisic’s acquittal, Nice’s caution, as recalled by Hartmann, appears entirely vindicated. That said, it is worth restating that Perisic’s indictment covered only the period from August 1993, when he was Chief of Staff, not the period when the Serbian aggression was actually launched and the largest part of the killings occurred. Thus, the claims made by Dacic and by the Sense News Agency, that the verdict exonerates Milosevic and Serbia of aggression against Bosnia and Croatia and of culpability in the siege of Sarajevo, are unfounded. Furthermore, as noted above, the Appeals Chamber has not actually changed the facts as established by the Trial Chamber: that the VRS was engaged in criminal activity, at Sarajevo and Srebrenica, and that Serbia’s army was aiding and abetting it while it was doing so.

On Twitter, Luka Misetic, the lawyer who successfully represented Gotovina, has succinctly referred to ‘Carla Del Ponte’s dark legacy: Perisic, Haradinaj, Oric, Gotovina, Cermak, Markac, Boskoski, Halilovic all indicted by CDP, all acquitted.’ The failure at the ICTY is that of a Prosecution that has repeatedly failed to secure the convictions of those it has indicted, not of the judges who were unconvinced by its cases.

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia has acquitted Radovan Karadzic, wartime president of the Bosnian Serb nationalist rebels’ ‘Republika Srpska’, of one count of genocide, relating to crimes committed in municipalities across Bosnia in 1992. According to its press release:

The Chamber’s oral ruling was delivered pursuant to Rule 98 bis of the Tribunal’s Rules of Procedure and Evidence which provides that at the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction.

…

The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.

This represents a 180-degree U-turn from the Trial Chamber’s decision eight years ago over Slobodan Milosevic. On 16 June 2004, in ‘Prosecutor v. Slobodan Milosevic: Decision on Motion for Judgement of Acquittal’, the Trial Chamber refused to acquit Milosevic on the same grounds, and ruled:

246. On the basis of the inference that may be drawn from this evidence, a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population, and that genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi. The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence, including the evidence set out in paragraphs 238 -245. The scale and pattern of the attacks, their intensity, the substantial number of Muslims killed in the seven municipalities, the detention of Muslims, their brutal treatment in detention centres and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group are all factors that point to genocide.

247. Having examined the evidence, the Trial Chamber finds no evidence of genocide in Kotor Varos.

…

323. With respect to the Amici Curiae submissions concerning genocide, the Trial Chamber, except for its holding in paragraph 324, DISMISSES the Motion and holds that there is sufficient evidence that

(1) there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group, and that its participants committed genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi;

(3) the Accused was a participant in a joint criminal enterprise, which included members of the Bosnian Serb leadership, to commit other crimes than genocide and it was reasonably foreseeable to him that, as a consequence of the commission of those crimes, genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise, and it was committed;

(4) the Accused aided and abetted or was complicit in the commission of the crime of genocide in that he had knowledge of the joint criminal enterprise, and that he gave its participants substantial assistance, being aware that its aim and intention was the destruction of a part of the Bosnian Muslims as group;

(5) the Accused was a superior to certain persons whom he knew or had reason to know were about to commit or had committed genocide of a part of the Bosnian Muslims as a group, and he failed to take the necessary measures to prevent the commission of genocide, or punish the perpetrators thereof.

324. The Trial Chamber finds no evidence that genocide was committed in Kotor Varos.

The contradiction between the Trial Chamber’s rulings over Milosevic in 2004 and Karadzic in 2012 indicates that it is not operating on the basis of consistent legal principles, and suggests a change of policy. A full analysis of the reasons behind this shift will have to await the Tribunal’s publication of the text of its decision.

I have been arguing since 2005 that the ICTY has been retreating in the face of international and Serbian resistance to its pursuit of justice. The list of failures, retreats, betrayals and unethical compromises has only grown over the years: the failure even to indict most of the principal members of the Joint Criminal Enterprise from Serbia and Montenegro – Veljko Kadijevic, Blagoje Adzic, Momir Bulatovic, Borisav Jovic, Branko Kostic and others; the failure to indict anyone at all for the destruction of the Croatian town of Vukovar; the indictment of only six officials in total from Serbia and Montenegro for war-crimes in Bosnia, and the conviction to date of only one of them; the sentencing of Republika Srpska vice-president Biljana Plavsic to only eleven years in prison, without making her testify, and her release after serving only seven years, despite her withdrawal of her acknowledgement of guilt; the censoring of the minutes of the Supreme Defence Council, preventing their use by Bosnia in its case against Serbia at the International Court of Justice; the prosecution of the ICTY’s own former chief prosecutor’s spokeswoman, Florence Hartmann, for having the temerity to reveal its dubious underhand dealings.

The ICTY’s U-turn over genocide in Bosnia is therefore par for the course. The people of the former Yugoslavia have not received justice from this tribunal.

Florence Hartmann, former spokeswoman for ICTY chief prosecutor Carla del Ponte, was last week indicted by the ICTY, on the charge of contempt of court, for allegedly disclosing classified information relating to the proceedings against Slobodan Milosevic. This information was allegedly published in her book, Peace and Punishment (Paix et chatiment) and in an article published on the website of the Bosnian Institute. Hartmann has rejected the charges, arguing that she has not revealed confidential information, but only information she had gathered through her work as a journalist, and that her indictment represents a blow by the Office of the Prosecutor against free speech and transparency. She has pledged to fight the charges.

Hartmann is the first Western citizen without roots in the former Yugoslavia, and the first former ICTY official to be indicted by the Tribunal. As she points out, her book was published a year ago, while the Bosnian Institute article was published in January, making the delay in the issuing of her indictment peculiar. The charges refer to a case that is no longer actual, and cannot be motivated by any desire to ensure the proper functioning of the proceedings. The indictment appears, indeed, to be an attempt to muzzle a whistleblower who has revealed information about the internal politics and incompetence within the Tribunal, and a warning to other former Tribunal officials who might be tempted to reveal more such information.

The ICTY is a highly flawed institution with a very patchy record; badly organised, filled with many incompetent apparatchiks alongside some committed professionals, riven with internal factionalism and corrupted by political pressures both external and self-induced, it has failed to deliver justice to the peoples of the former Yugoslavia. I am myself a former official of the Tribunal, and my biggest criticism of it has been its failure to indict most of the principal Serbian and Montenegrin war-criminals, a failure that, on the basis of my eyewitness experience, I attribute in large part to the poor strategy of del Ponte as Chief Prosecutor. But a perhaps even more shameful failing on the Tribunal’s part was the one about which Florence writes: the decision of the judges in the Milosevic case to allow Serbia, when submitting to the Tribunal the minutes of the ‘Supreme Defence Council’ of the former Federal Republic of Yugoslavia, to censor parts of it in the version that was made public. As Florence argues, it was thanks to the Tribunal’s collusion with Serbia in the suppression of this crucial piece of evidence, that Bosnia was not able to draw upon the latter in its case against Serbia for genocide at the International Court of Justice, leading to Serbia’s unjustified acquittal. Far from punishing the perpetrators of genocide in the former Yugoslavia, the Tribunal has helped to shield them (NB to date, only one individual, a lowly deputy corps commander of the Bosnian Serb army, has been successfully prosecuted for a genocide-related offence by the ICTY, while not a single official from Serbia has yet been convicted of any war-crime in Bosnia whatsoever).

The Tribunal may or may not have a legal case against Hartmann. What is certain, however, is that Hartmann was acting in the public interest in revealing the information she did. The people of the former Yugoslavia have a right to know why they have not received much in the way of justice from the ICTY, while the citizens of the world have a right to know why this UN court, funded by their taxes, has produced such poor results. Public interest would best be served if more former Tribunal officials showed as much principle and courage as Florence, and came forward with more insider information so that we can better understand this whole, sorry story. This would help to ensure that other international courts could avoid the ICTY’s mistakes. But we are all aware that there is a risk: I myself, after being interviewed about the ICTY by the Croatian journalist Domagoj Margetic last year, received a threatening letter from the Tribunal, warning me that I had, when taking up the post back in 2001, signed a declaration promising to respect the Tribunal’s confidentiality (Florence, too, apparently received such a letter when she first began publicly to speak about the ICTY). Although I did not take this threat seriously at the time, it appears my complacency has been misguided.

Florence is a brave, principled and committed individual who has done more than anyone to reveal the extent to which the international community and the international courts have betrayed the cause of justice for the former Yugoslavia. Although I disagree with some of what she says in her book, it is nevertheless a splendid, daming critique of this betrayal, and her accusations of Western complicity in Radovan Karadzic’s evasion of arrest for thirteen years have been essentially vindicated; I would recommend anyone interested in the subject to read it. Florence is fighting the battle for truth on behalf of all the victims of the wars in the former Yugoslavia, and all present and future historians. We are 100% on her side.

Florence Hartmann, former spokeswoman for Chief Prosecutor Carla del Ponte of the International Criminal Tribunal for the former Yugoslavia (ICTY), is the first senior official of the ICTY to have written a book discussing its inner workings (Paix et chatiment: Les guerres secretes de la politique et de la justice internationales, Flammarion, 2007). She has used her eyewitness’s insight into the inner workings of the ICTY to support her blistering critique of the failure of the Western alliance to support the cause of justice for the former Yugoslavia. Her book paints a portrait of Western powers, above all the US, Britain and France, stifling the ICTY and preventing the arrest of war-criminals through a combination of obstruction, manipulation, mutual rivalry and sheer inertia.

One of the best parts of the book concerns what Hartmann terms the ‘fictitious pursuit’ of the two most prominent Bosnian Serb war-criminals, Radovan Karadzic and Ratko Mladic, involving repeated failures to arrest them. Hartmann gives various reasons why the Western powers might have behaved in this manner, among them the alleged agreement in 1995 between Milosevic, Mladic and French President Jacques Chirac, that in return for the release of two French pilots shot down by the Serbs over Bosnia, Mladic would never be prosecuted by the ICTY; the similar alleged agreement between Karadzic, Mladic and the US’s Richard Holbrooke in 1996, for Karadzic to withdraw from political life in return for a guarantee that he would never be prosecuted; and the readiness in 2002 of Bosnia’s High Representative, Britain’s Paddy Ashdown, to sabotage the attempts of Bosnian intelligence chief Munir Alibabic to track down Karadzic, out of rivalry with the French intelligence services with which Alibabic was working.

Hartmann has done an admirable job in compiling a comprehensive account of all these rumours, and in reminding us of just how much may have been going on behind the scenes. The problem is that they remain only rumours, ones that often originated from Serb officials themselves. The merciless portrait of the failure of international justice is one that we should all recognise; Hartmann has brought a welcome dose of hard-headed cynicism to discussions of the topic, marking a refreshing change from the rose-tinted view of too many liberal commentators. But it is in her attempts at interpreting this failure that Hartmann’s book becomes more problematic. That the US under Clinton was unwilling to risk the lives of its troops in attempts to arrest war-criminals; that the US under Bush was unsympathetic to international courts in principle and unwilling to allow the war-criminals issue to become a distraction from the War on Terror; and that the US was in general unwilling to allow sensitive classified information of its own to be used in prosecutions of war-criminals, thus putting its own ‘national security’ before international justice – all this seems uncontroversial. But Hartmann does not stop at such observations; she portrays a comprehensive policy of the ‘Anglo-Saxons’ to sabotage international justice, in order that the Western powers’ own prior collusion with Serb war-criminals not be brought to light. And while such a thesis does not in principle sound unlikely, Hartmann has a) failed to provide any real evidence to support it; b) attempted to explain too much through it; and c) failed to resolve the paradoxes that it necessarily gives rise to.

It is unclear how Western powers that have been applying very real if inconsistent pressure on Serbia to hand over war-criminals to the ICTY, and that acquiesced in Milosevic’s deportation to and trial in the Hague, can have been pursuing such a single-minded policy of sabotaging international justice motivated by an overarching concern to keep their own complicity hidden. A more convincing and nuanced interpretation would be that the Western powers were pursuing a contradictory policy toward Serbia and the ICTY, with different individuals and institutions in Britain, France and the US acting at variance with one another – the left hand not knowing what the right hand was doing. But such an interpretation could only with difficulty be reconciled with Hartmann’s thesis, which is really something close to a conspiracy theory: that the ‘Anglo-Saxon’ powers of Britain and the US are all-powerful puppet-masters in control of events and pursuing an entirely consistent and uniform policy.

The concept of ‘Anglo-Saxons’ is one that Hartmann uses liberally, and it suggests a peculiarly French perspective. Hartmann is ready to point out French complicity in the failure of international justice, but she nevertheless allows a degree of nuance in her interpretation of French policy that she is unwilling to recognise for the ‘Anglo-Saxons’. Treating the US and Britain as if they were a uniform bloc with regard to the former Yugoslavia is, in fact, problematic: for most of the Bosnian war it was the British and French who generally stood together in opposition to American calls for a tougher policy vis-a-vis the Bosnian Serb rebels; it was France, not Britain, that was the first to break ranks and move closer to the US position; and more recently the British and French have stood together in supporting the International Criminal Court, which the US has refused to recognise. So the concept of a uniform ‘Anglo-Saxon’ policy with regard to the ICTY is already questionable. But Hartmann goes further, and accuses ‘Anglo-Saxon’ employees of the ICTY in general – i.e. Americans, British, Canadians, Australians, New Zealanders and South Africans – of being agents of this same ‘Anglo-Saxon’ policy. And this is where Hartmann’s thesis does become simply a conspiracy theory.

I myself worked as a Research Officer at the ICTY’s Office of the Prosecutor (OTP) for seven months, and many of the quirks and flaws of the ICTY’s organisation that Hartmann describes are ones that I recognise. The predominance of officials from the white Anglophone countries, particularly in the more senior ranks, was very marked, and was something I interpreted at the time simply as an expression of an unfortunate preference of officials to work with others speaking the same native language and sharing a similar cultural background. The division of OTP investigators into different teams investigating the crimes of different groups of former Yugoslavs, with several different teams devoted to Bosnian Serb war-criminals but only one to Serbia’s crimes in Bosnia – contributing to there being numerous indictments of Bosnian Serbs but very few of members of the Belgrade leadership or Yugoslav army for war-crimes in Bosnia – was also apparent. Hartmann attributes to the OTP’s Australian deputy prosecutor, Graham Blewitt, an unwillingness to ascribe blame to Belgrade for war crimes in Bosnia; indeed, a reluctance to work on the prosecution of Milosevic at all, on the assumption that it was a waste of time as he would never be deported to the Hague.

I do not know whether this accusation against Blewitt is correct or not; Hartmann may have garnered enough inside information to be able to support it. But it is unclear how she can then jump to the conclusion that the OTP under Blewitt and Chief Prosecutor Richard Goldstone, one of del Ponte’s predecessors and a South African, ‘rejected any attempt to overstep the obstacles put up by the Great Powers that at Dayton had de facto distributed impunity to their principal suspect. The Westerners did not wish for the Tribunal to interest itself too closely with the orchestrator of the policy of ethnic cleansing that ravaged the former Yugoslavia’ (p. 89) – it was, after all, Goldstone who originally indicted Karadzic and Mladic, who Hartmann then argues were precisely the ones whom the Western powers did not want to face justice. Or the conclusion that she comes to regarding the resistance of the Blewitt faction in the OTP to del Ponte’s attempts to indict Milosevic for genocide and for war-crimes in Srebrenica and Sarajevo: ‘Srebrenica, the genocide charge and, secondarily, Sarajevo were not only the cause of perpetual friction within the Office of the Prosecutor, but also between the ICTY and the Great Powers. Hence the question of the impact of the strategy of the Anglo-Saxon governments and their enmeshing of the Prosecution, too insidious to be quantifiable but that could not have been unrelated to the absence of a will to indict Milosevic and to the reticence that arose over every key episode of the case.’ (p. 91).

Hartmann’s accusations become wilder: ‘All the officers occupying the key posts within the Serb forces in Bosnia, engaged in the capture of Srebrenica and the massacres that followed, all without exception had been released from service by the general staff of the army of Belgrade and continued to have their salaries paid by Belgrade. For nearly ten years, the MAT [Military Analysis Team] obscured this information, thus preventing the Prosecution from inquiring about the true nature of the control exercised by the central power in Belgrade over the cadres of the Bosnian Serb army during the Srebrenica episode.’ … ‘To dismiss facts that they wished to obscure, members of the MAT would proclaim that a witness or unwelcome parts of their testimony were not credible… The Anglo-Saxon military analysts (there were no French), deliberately and systematically concealed directly Milosevic’s responsibility for crimes in Bosnia, particularly at Srebrenica. On the orders of their governments, they long determined the interpretation of documents in the manner that they wished, and ensured that the Tribunal, established to conceal their impotence, should not by any chance reveal the cowardice of the Great Powers during the time of the wars in the former Yugoslavia.’ (pp. 103-106).

And wilder: on the reluctance of Geoffrey Nice, chief prosecutor in the Milosevic trial, to indict Milosevic for genocide and for the Srebrenica massacre, Hartmann writes that ‘Rather than convincing the judges, beyond all reasonable doubt, of Milosevic’s responsibility for genocide, he [Nice], attempted to convince del Ponte to abandon the prosecution… Instead of helping the Tribunal in its search for the truth, he entered into the game of the Great Powers.’ To which is added, in a footnote, a pointed claim, based solely on the testimony of Kosovar politician Azem Vllasi, that Nice had worked for British intelligence during the 1960s (pp. 140-141).

Thus, Hartmann portrays those lawyers and researchers who disagreed with del Ponte over strategy, or who interpreted evidence differently, or who failed to produce the right evidence, as being agents of the Great Powers, in particular the ‘Anglo-Saxon’ powers. It is one thing to be critical of the performance or strategy of individuals or teams within the OTP; but to accuse them of deliberately sabotaging the Prosecution’s work on the orders of the Great Powers, without providing any evidence, is something else entirely: it strangely resembles the propanda of the Milosevic regime and the Serb nationalists, according to which all opposition to the Great Serbian cause was orchestrated by the imperialists, and all Serb critics of the regime were Western stooges. Not to mention the Serb nationalists’ oft-repeated claim, that the ICTY itself is simply a tool of Western imperialism.

I am entirely ready to believe that the British and American intelligence services had their agents in the OTP, and I have no doubt that the OTP contained many incompetent officials who obstructed its work. But that is a far cry from saying that the ‘Anglo-Saxon’ powers had so many agents in the Tribunal that they were effectively able to control it. My own experience of working at the OTP does not confirm such a claim. I worked for the Leadership Research Team, of which Hartmann writes: ‘This pool of experts on the Balkans was confided to a South African who continued to reject links between the local command structures and Belgrade, to the great displeasure of his team.’ (p. 90). This may or may not have been true of the late 1990s, but when I arrived at the Leadership Research Team in early 2001, it was under an American, Pat Treanor, who had been with the ICTY from the beginning and who immediately assigned me to work on analysing the command structures through which Belgrade controlled Serb forces in Bosnia.

The team investigating the leadership of Serbia/Yugoslavia’s war-crimes in Bosnia, ‘Team 5’, with which I worked, was headed by an Australian, Bernie O’Donnell; the first draft indictment of Milosevic for war-crimes in Bosnia, on which I, Bernie and other members of Team 5 worked, was a collective indictment of senior members of the ‘joint criminal enterprise’, including not only Milosevic but also Veljko Kadijevic, Blagoje Adzic, Borisav Jovic, Branko Kostic, Momir Bulatovic and others. As I have said many times before, it was on del Ponte’s intervention that this draft was rejected, and the indictment limited to Milosevic alone, as a result of which most of these individuals were never indicted. So on the basis of my personal experience, it was the ‘Anglo-Saxons’ who wanted to pursue the Serbian/Yugoslav leadership, and del Ponte who restricted the indictment.

More generally, in the seven months in which I worked at the OTP I got to know many other investigators, ‘Anglo-Saxons’ and others, some of them quite well, and some of whom I had known from before any of us were working for the ICTY. There was plenty of rumour and gossip going around, but nothing that would suggest a large-scale infiltration of the OTP by British and American secret agents. Finally, del Ponte’s predecessor as Chief Prosecutor, the Quebecoise Louise Arbour, herself apparently clashed with the Great Powers and with her colleagues in the OTP for the same reasons that del Ponte did, according to Hartmann. Leaving one to wonder how the Anglo-Saxon puppet-masters could have been so careless as to allow two French-speaking troublemakers in a row to become chief prosecutor.

Hartmann portrays del Ponte as the heroine of the story, fighting for justice against the ill-intentioned Western powers and their agents in her own team. Her book, therefore, is interesting for what it reveals about what preoccupied del Ponte: above all, the arrest and prosecution of Karadzic and Mladic, and the indictment of Milosevic for genocide, for the Srebrenica massacre and for the siege of Sarajevo. While I entirely sympathise with del Ponte’s determination to indict Milosevic for genocide, I am less convinced of the importance of indicting him for Srebrenica and for Sarajevo. The importance of Srebrenica may appear justified in hindsight, as it was the only case for which genocide was proven to have taken place by the ICTY – though I am not convinced that del Ponte could have predicted this. But Sarajevo ? The reason for del Ponte’s determination to indict Milosevic for Srebrenica and Sarajevo was, according to Hartmann, that they were ‘the two most symbolic episodes of the war in Bosnia.’ (p. 88). Which tends to confirm my suspicion that del Ponte’s policies were guided above all by public perceptions of what was important, rather than by what really was. Hence the obsession with the household names, Mladic and Karadzic, and complete lack of interest in supects like Kadijevic, Jovic and Adzic, forgotten in the West, who were actually much more responsible for what took place in Bosnia: Mladic was a nobody handpicked by the Belgrade leadership for the role he was to play.

There is, indeed, something of a contradiction between the preoccupation of del Ponte and Hartmann with Karadzic and Mladic, and Hartmann’s simultaneous insistence that the Bosnian Serbs were acting always under Belgrade’s control. For if, indeed, Karadzic and Mladic were acting at all times under Belgrade’s control or guidance, then it is unclear why the Western powers should have been ready to allow Milosevic’s deportation to the Hague, but not Karadzic’s or Mladic’s – did the minions really possess information about Western complicity that was so much more embarrassing than anything possessed by their boss ? Nor is it easy to reconcile the supposed determination of the ‘Anglo-Saxons’ to acquit Serbia of war-crimes in Bosnia with their supposed equal determination to shield Karadzic and Mladic, rather than Milosevic, from prosecution. One explanation might be that it was precisely Karadzic and Mladic who could have revealed the extent of Belgrade’s direction of the Bosnian Serb war-crimes. But do Karadzic and Mladic really know so much more than Biljana Plavsic, Momcilo Krajisnik, Jovica Stanisic, Momcilo Perisic and all the other indictees who have been successfully turned over to the ICTY ? And even if they do, can the Western powers really have known this and engineered events to ensure that it was only Karadzic and Mladic who escaped justice ? Such an interpretation stretches plausibility to breaking point.

Peace and Punishment, nevertheless, remains essential reading for several reasons. It reminds us that, however critical one may be of del Ponte’s performance as Chief Prosecutor, she was very far from being the only senior individual responsible for the ICTY’s failures. It gives an insight into the sort of debates and conflicts over strategy that preoccupied war-crimes investigators at the OTP. And it highlights the fact that, far from being an agent of Western imperialism, the Chief Prosecutor was acting in a frequently hostile international arena, in which she had to struggle for international cooperation, and in which the ICTY was frequently squeezed rather than supported by the Great Powers. Although, as I have indicated, I am highly critical of several aspects of this book, I would nevertheless recommend it to anyone interested in the subject of why international justice has failed the peoples of the former Yugoslavia.

Florence Hartmann, former spokeswoman for Carla del Ponte, chief prosecutor at the International Criminal Tribunal (ICTY) for the former Yugoslavia, has responded to my last post. You can read her response here, and my response to her response here.

Since working under del Ponte as a Research Officer at the Office of the Prosecutor of the ICTY back in 2001, I have come to be extremely critical of her policies as chief prosecutor. I blame her in particular for the ICTY’s failure to indict the principal Serbian and Montenegrin war-criminals. I explain this here and here. However, it would be a mistake to blame the ICTY’s failures on a single individual; ultimately, the institution has not worked very well because of its deep structural flaws and because of obstruction and manipulation by outside forces. And there are undoubtedly other senior officials at the ICTY, in addition to del Ponte, who are responsible for the disastrous policies of the Office of the Prosecutor.

Florence Hartmann, who worked at the ICTY much longer than I did, has written a book, Paix et châtiment. Les guerres secrètes de la politique et de la justice (Flammarion, 2007) that seeks to explain the reasons for the ICTY’s failures and to name the senior officials responsible. In particular, she apparently points the finger at Geoffrey Nice, lead prosecutor in the trial of Slobodan Milosevic, and Graham Blewitt, deputy chief prosecutor under del Ponte. Both Nice and Blewitt have, since quitting their jobs at the ICTY, publicly criticised del Ponte’s handling of the role of chief prosecutor. ‘Paix et chatiment’ is no. 1 on my reading list of books that I plan to read now that term is coming to an end and I no longer have teaching commitments; given the importance of its subject matter (not to mention the fact that my French is rather rusty), it will require the devotion of quality time, after which I shall be able to evaluate it properly. But I think it safe to say that this book will be required reading for anyone wishing to understand the failures of the ICTY.

Hartmann argues that Mladic has evaded capture not just because of Serbia’s unwillingness to arrest him, but also because certain Western governments have deemed it not in their interest that he be arrested – she explains this in more detail here than she did in her response to me. In principle, I find this entirely plausible. The genocidal massacre at Srebrenica, for which Mladic is responsible, occurred because Western governments and the UN were willing to allow Serb forces to conquer the ‘safe area’. The extent of Western and UN complicity in the Srebrenica massacre runs very deep, and it is entirely possible that Mladic could greatly embarrass Western governments with everything he could say, and that this may be a reason why he has not been arrested. However, as I explain in my response to Hartmann, one cannot draw such a conclusion without firm evidence. Furthermore, it would need to be explained why the international community was prepared to countenance Milosevic’s deportation to the Hague but not Mladic’s; Milosevic presumably possessed the most embarrassing material on Western complicity with the genocide in Bosnia, had he chosen to reveal it (I find Hartmann’s attempt to resolve this paradox unconvincing). Finally, Western complicity in Mladic’s evasion of arrest cannot have been consistent, given the very real pressure on Serbia to apprehend him. This does not mean that there was no such complicity; the left hand may not know what the right hand is doing. But this requires a complex and nuanced explanation.

The Western powers and the UN were undoubtedly complicit in the genocide in Bosnia, and nothing that they have done since 1995 has delivered justice to the victims. We do not yet know the full extent of this complicity, but more evidence will surface as time goes by. This is one more reason why we should hope that Mladic is eventually arrested, and, if Hartmann is right, one reason why he may never be.

About

A blog devoted to political commentary and analysis, with a particular focus on South East Europe. Born in 1972, I have been studying the history of the former Yugoslavia since 1993, and am intimately acquainted with, and emotionally attached to, the lands and peoples of Croatia, Bosnia-Hercegovina and Serbia. In the summer of 1995, I acted as translator for the aid convoy to the Bosnian town of Tuzla, organised by Workers Aid, a movement of solidarity in support of the Bosnian people. In 1997-1998 I lived and worked in Sarajevo, Bosnia-Hercegovina. In 1998-2001 I lived and worked in Belgrade, Serbia, and was resident there during the Kosovo War of 1999. As a journalist, I covered the fall of Milosevic in 2000. I worked as a Research Officer for the International Criminal Tribunal for the former Yugoslavia in 2001, and participated in the drafting of the indictment of Slobodan Milosevic.

I received my BA from the University of Cambridge in 1994 and my PhD from Yale University in 2000. I was a Postdoctoral Research Fellow of the British Academy in 2001-2004, a member of the Faculty of History of the University of Cambridge in 2001-2006, an Associate Professor at Kingston University in 2006-2017, and am currently an Associate Professor at the Department of Political Science and International Relations of the Sarajevo School of Science and Technology, affiliated with the University of Buckingham. This blog was launched while I was living in Surbiton in the UK. I am based in Sarajevo and London.